Latest legal news on Minimum Unit Pricing has united opposing camps

Both sides are claiming victory following the latest legal opinion from Luxemburg on the Scottish government’s bid to introduce minimum unit pricing for alcohol.

It’s a row that’s been going on for three years now and, to cut a long story short, the ball has been kicked across the Channel, where the European Court of Justice is slowly deliberating on whether MUP will be a disproportionate restriction on trade and, therefore potentially, illegal.

We’ve probably got a few more months before they make their minds up, and even then the case will be bounced back to the Scottish Court of Session, which may or may not follow the judgement.

Nevertheless, the Advocate General’s opinion, delivered in September, caused some excitement amid the dull, legislative grind. It was seen as an important clue to how it might all turn out. The AG, in this case a legal bigwig named Yves Bot, is there to give the other judges a steer. Mostly they listen.

And everyone chose to relieve the boredom a little by celebrating what he had to say.

Bodies as vigorously opposed to each other as the Scotch Whisky Association, which has led the challenge to the Scottish government’s plan, and the temperance-minded Institute of Alcohol Studies (IAS) both welcomed the AG’s opinion.

How could that be?

The opinion is a dense and lengthy document, comprising 153 numbered points. It was never going to be straightforward, and always open to interpretation.

Briefly, Bot says that MUP would, indeed, restrict trade under the rules of the Common Agricultural Policy, but that if it’s done in the interests of public health, and it’s proportionate, that’s OK. The devil, as you might guess, lies in the word “proportionate”.

If there is another way of achieving the aims of MUP, a way that would be less restrictive to trade, namely through taxation, then MUP is disproportionate. So the Scottish government has to demonstrate that minimum pricing reaches the parts that other measures fail to reach, so to speak.

Angus MacCulloch, a senior lecturer in EU law at Lancaster University, writing on the Alcohol Policy UK website, stresses that the key to this is establishing in precise terms what MUP is supposed to achieve.

“The AG makes an important point, that it is vital the Scottish courts decide what the aim of MUP is when deciding whether it is a suitable measure,” he says. “Is it targeted specifically at ‘harmful and hazardous’ drinkers, or does it have a wider general health goal? I have argued for some time that it is far easier for a member state to justify a measure which is clearly targeted at a particular policy objective.

“A general measure is much more difficult to justify, because it widens the choice of policies and increases the possibility that other measures might work just as well.

“Issues surrounding the exact purpose of the measure and the relative importance of targeted health outcomes – and the wider impact of the measure on the general public – will no doubt be at the heart of the ongoing litigation,” he concludes.

Now, one of the curious things about MUP is that it started life as a policy that aimed to reduce alcohol consumption across a whole population. Only when the idea met resistance from those arguing that it would unfairly penalise moderate drinkers did research start looking at the relative impact on heavier drinkers.

MUP was reborn as a sharply targeted policy for political rather than legal reasons, but if MacCulloch is correct it now looks like that will be crucial in the courts.

On the other hand, as MacCulloch points out, Bot also suggests that supporters of MUP will be required to explain why a duty increase would not be more effective among wealthier harmful drinkers, and also help improve general health.

This, Bot says, might “constitute a decisive factor that would justify the choice of that measure rather than the MUP measure”.

A further complication is that the Scottish government does not have the power to raise taxes. That might be one reason why it’s so keen on MUP, but will that convince the judges that it has no other option?

Another legal expert, Jonathan Goodliffe, on the IAS website, believes Bot has failed to take into account the growing importance of the health question in European law and is “in a sense still living in the 1950s when the relevant rules were first set out in the Treaty of Rome”.

He says: “Since then health, human rights and consumer protection have become main objectives of what is now the EU, whereas competition and free trade are a means to
an end.”

If he’s right, even if Bot’s opinion is carried intact all the way back to the Scottish courts, they may still decide MUP escapes competition law. And then, no doubt, the SWA will appeal to the UK Supreme Court.

Don’t wait up.


MUP no help to those at risk

While due legal process continues on its miserable way, public health campaigners will continue to demand minimum unit pricing as the solution
for each and every alcohol harm that pops up. Yet new evidence suggests it may be no use at all to those who need the most help.

A long-term Scottish study of drinkers consuming an average of 185 units a week shows they continue to – literally - drink themselves to death despite falling income and welfare cuts.

They drink the cheapest alcohol available, and when that goes up in price they continue to pay for it by cutting down on something else, like food or fuel.

For these people, MUP could even have a detrimental effect. As Professor Jonathan Chick and his team conclude: “Policymakers will need to be sensitive to the unexpected or potentially risky consequences that may arise from the policy, at least in the short term”.


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